Citation NR: 9729622
Decision Date: 08/27/97 Archive Date: 09/02/97
DOCKET NO. 92-22 975A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for residuals of shin
splints.
2. Entitlement to service connection for arthralgia of the
elbows, knees, ankles and right hip.
3. Entitlement to service connection for degenerative
arthritis of the lumbar spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from February 1965 to March
1969 and from January 1976 to January 1992.
This case comes to the Board of Veterans’ Appeals (Board) on
appeal of an August 1992 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA).
At his hearing in May 1993 the veteran has disagreed with the
denial of service connection for hearing loss of the left ear
and with the evaluations assigned for his service-connected
right ear hearing loss, otitis media and headaches. These
matters were addressed by the hearing officer and a
supplemental statement of the case adding these issues was
furnished in June 1993. The veteran was told that in order
to perfect his appeal to the additional issues, a substantive
appeal needed to be filed within 60 days. He did not do so.
Hence these issues are not properly before the Board.
38 U.S.C.A. §§ 7105, 7108 (West 1991 & Supp. 1995);
38 C.F.R. § 20.302(c) (1993); Roy v. Brown, 5 Vet.App. 554
(1993).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has residuals of a low back
injury, shins splints and multiple joint arthralgia that
originated while he was on active duty. It is pointed out
that he was treated for joint pain, including pain in his low
back, during service and that the service medical records
also show treatment for shin splints. His representative
contends that another examination is necessary to ascertain
the extend of the veteran’s disability due to pain in
accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995).
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claims for service
connection for shin splints, and multiple joint arthralgia
are not well-grounded, and the appeal is denied. It is also
the decision of the Board that the preponderance of the
evidence supports the claim for service connection for
degenerative arthritis of the lumbar spine.
FINDINGS OF FACT
1. Chronic shin splints are not currently demonstrated.
2. There has been no establishment of an etiologic nexus
between currently demonstrated arthralgia of the elbows,
knees, ankles and right hip and service.
3. Degenerative arthritis of the lumbar spine had its onset
during service.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well-grounded
claim regarding service connection for shin splints.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1995);
38 C.F.R. § 3.303 (1996).
2. The veteran has not submitted evidence of a well-grounded
claim regarding service connection for arthralgia of the
elbows, knees, ankles and right hip. 38 U.S.C.A. §§ 1110,
1131, 5107 (West 1991 & Supp. 1995); 38 C.F.R. § 3.303
(1996).
3. Degenerative arthritis of the lumbar spine was incurred
during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 &
Supp. 1995); 38 C.F.R. § 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131. If a condition noted during
service is not shown to be chronic, then generally, a showing
of continuity of symptoms after service is required for
service connection. 38 C.F.R. § 3.303(b).
I. Shin Splints and Multiple Joint Arthralgia
The threshold question to be answered concerning these issues
is whether or not the veteran has presented evidence of well-
grounded claims; that is, ones that are plausible,
meritorious on their own, or capable of substantiation.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78
(1990). If he has not presented such claims, his appeal must
fail and there is no duty on the VA to assist him in the
development of his claims because such additional development
would be futile. Id.
In order for a claim to be well grounded, there must be
competent evidence of current disability, evidence of the
incurrence or aggravation of a disease or injury during
service, and a nexus between the in-service injury or disease
and the current disability. That means that for a claim of
service connection, there must be evidence of a current
disability, disease or injury during service and a link
between the two. Furthermore, the evidence needed to
establish service connection for any particular disability,
must be competent. That is, an injury during service may be
verified by medical or lay witness statements; however, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause or symptoms during service, a competent
opinion of a medical professional is required. Caluza v.
Brown, 7 Vet.App. 498 (1995).
For reasons that will be given, these claims are not found to
be well-grounded. Although where claims are not well
grounded VA does not have a statutory duty to assist a
claimant in developing facts pertinent to his claim, VA may
be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant
of evidence needed to complete his application. This
obligation depends upon the particular facts of the case and
the extent to which the Secretary of the Department of
Veterans Affairs has advised the claimant of the evidence
necessary to be submitted with a VA benefits claim. Robinette
v. Brown, 8 Vet.App. 69 (1995).
In this case, the RO fulfilled its obligation under section
5103(a) in the Statement of the Case in which the appellant
was informed of the reasons of the denial of his claim.
There is no indication of record that there is evidence
pertinent to this case that has not yet been obtained. In
this regard, it is noted that the veteran’s representative
has asserted that additional evaluations are warranted in
accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995). The
Board has evaluated this contention and has distinguished the
present situation from that decision, the primary distinction
being that issue in DeLuca was that of increased rating, not,
as in the current appeal, a question of service connection.
Furthermore, by this decision the Board is informing the
veteran of the evidence which is lacking and that is
necessary to make his claim well grounded.
Service medical records show that the veteran was treated for
shin splints in March 1977. X-ray studies were within normal
limits. He had no further complaint of this disorder
throughout his remaining years of service. He was examined
by VA in March 1992. At that time, he reported that he had
had shin splints in 1976 and that the pain had recurred from
time to time. The diagnosis was history of shin splints, no
tenderness at the present time.
The diagnosis of shin splints, made on VA examination, was by
history only. The record does not contain evidence that the
veteran has manifested this condition since the single
episode in service. When there is no demonstration of
current disability, a well-grounded claim has not been
submitted. Rabideau v. Derwinski, 2 Vet.App. 141 (1992).
Under these circumstances, the claim is not plausible and
must be denied.
The veteran is seeking service connection for arthralgia of
the elbows, knees, ankles and right hip. While service
medical records show that he complained of pain in several
joints while on active duty, the record does not show
complaints in these specific joints during service. The VA
examination in March 1992 included a diagnosis of multijoint
arthralgia, rule out arthritic changes of the shoulders,
elbows, wrists, knees and ankles. X-ray studies of the
knees, wrists, and elbows, were normal. The examiner did not
relate the diagnosis of arthralgia to the veteran’s period of
active duty. While the veteran testified that he believed
there was a relationship, he is a layman and, as such, not
competent to give an opinion requiring medical knowledge such
as involved in making diagnoses or explaining the etiology of
a condition. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
It should be emphasized that to be deemed well grounded, a
claim for service connection must be supported by evidence,
not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609
(1992). For his claim to be well grounded, the veteran would
have to submit competent medical evidence of causality between
incidents of service and the disability for which he is
claiming service connection. Grivois v. Brown, 6 Vet.App. 136
(1994). As the veteran has not done so, the claim is not
considered plausible and must be denied.
II. Degenerative Arthritis of the Lumbar Spine
It is initially noted that this claim on appeal is well
grounded; that is, it is not inherently implausible. It is
also found that the facts relevant to this issue have been
properly developed and the statutory obligation of the VA to
assist the veteran in the development of his claim has been
satisfied. 38 U.S.C.A. § 5107(a).
Service medical records show that the veteran complained of
back pain on three occasions while on active duty. In June
1989, he had pain in the middle of his back on movement of
the neck. Tenderness of the trapezius muscle was noted. The
assessment was muscle sprain. Similar pain in the trapezius
muscle was noted in June 1990, with the same assessment. In
October 1991 he reported complaints of extreme back pain that
radiated down his left leg. There was no report of trauma.
X-ray studies showed the L5-S1 interspace to be mildly
narrowed. No significant degenerative changes were seen by
the radiologist and the examiner stated that the study showed
no acute pathology. The assessment was musculo-ligament
strain/sprain.
An examination was conducted by VA in March 1992. At that
time, range of motion of the lumbar spine was noted to be 90
degrees forward flexion, 30 degrees backward extension, 30
degrees lateral flexion and 40 degrees rotation. The
examiner reviewed the report of the October 1991 X-ray study
and rendered a diagnosis of degenerative changes of the
lumbosacral spine. This diagnosis, which is based upon the
findings of the in-service X-ray study, is sufficient to
render the claim plausible and, in fact, places the evidence
in relative equipoise. As such the benefit of the doubt
doctrine is applicable. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet.App. 49 (1990). Under these circumstances,
service connection is granted.
ORDER
The claims for service connection for shin splints and
arthralgia of the elbows, knees, ankles and right hip are
denied. Service connection for degenerative arthritis of the
lumbar spine is granted.
C. P. RUSSELL
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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